MR. GOPAL GANESAN,COIMBATORE vs. ACIT, NON CORP CIRCLE-4, COIMBATORE, COIMBATORE

आदेश /O R D E R

PER MANJUNATHA. G, ACCOUNTANT MEMBER:

This appeal filed by the assessee is directed against the order passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 06.10.2023 and pertains to assessment year 2012-13.

:-2-: ITA. No: 1429/Chny/2023 for which necessary petition for condonation of delay along with affidavit explaining the reasons for the delay has been filed. The AR further submitted that, the assessee could not file appeal within the time allowed under the Act, due to the fact that appeal papers were sent by courier from Coimbatore to Chennai, due to landfall of cyclone Michaung on 04.12.2023 & 05.12.2023, the appeals were received by the authorized representative only on 06.12.2023, which caused delay of 1 day. The delay in filing appeal is neither intentional nor willful but for the unavoidable reasons, therefore, delay may be condoned in the interest of advancement of substantial justice.

:-3-: ITA. No: 1429/Chny/2023 was issued and served on the assessee. In response, the assessee has filed return of income declaring total income of Rs. 18,70,667/-. The case was selected for scrutiny and during the course of assessment proceedings, the Assessing Officer noticed that the assessee has paid cash in excess of Rs. 20,000/- in violation of provisions of section 40A(3) of the Act, for purchase of land and thus, called upon the assessee to file necessary details and also explain as to why cash payment in excess of prescribed limit cannot be disallowed u/s. 40A(3) of the Act. The assessee had also incurred commission expenses in cash in excess of prescribed limit. Therefore, the Assessing Officer made additions of Rs. 97,06,400/- u/s. 40A(3) of the Act. The assessee carried the matter in appeal before the first appellate authority, but neither appeared nor filed any details, even though the ld. CIT(A) had given sufficient opportunities to the assessee. Therefore, the ld. CIT(A) by following certain judicial precedents dismissed appeal filed by the assessee and upheld additions made by the Assessing Officer towards cash payment u/s. 40A(3) of the Act. Aggrieved by the ld. CIT(A) order, the assessee is in appeal before us.

:-4-: ITA. No: 1429/Chny/2023 5. The Ld. Counsel for the assessee, submitted that the ld. CIT(A) dismissed appeal filed by the assessee without providing reasonable opportunity of hearing, in violation of principle of natural justice and thus, in the interest of natural justice, one more opportunity of hearing may be given to the assessee to explain its case before the ld. CIT(A).

:-5-: ITA. No: 1429/Chny/2023 appellant could not explain proper reasons for non-appearance before the Assessing Officer and ld. CIT(A). From the above, it is undoubtedly clear that, assessee is very casual in his approach before the authorities and said approach cannot be appreciated. Further, although the ld. CIT(A) has disposed off appeal filed by the assessee, but such appeal has been dismissed on technical grounds, without considering the issue on merits. It is a well settled principle of law by the decisions of various courts that, even in a case of appeal being disposed off for non-prosecution of the appellant, the said appeal should be disposed off on merits, on the basis of material available on record. Since, the ld. CIT(A) has dismissed appeal filed by the assessee without considering the issue on merits, in our considered view the assessee deserves one more opportunity of hearing before the CIT(A). But, the assessee should get another opportunity subject to payment of nominal cost for non-serious in prosecuting its case before the authorities. Thus, we set aside the order passed by the ld. CIT(A) and restore the issue back to the file of the CIT(A) to give one more opportunity of hearing to the assessee to substantiate its case with necessary evidences. The assessee is directed to pay nominal cost of Rs. 10,000/- to State Legal Aid Authority,

:-6-: ITA. No: 1429/Chny/2023 Hon’ble High Court of Madras and produce necessary proof of payment to the Registry within 15 days from the date of this order.